R v. Saulnier, 2012 NSSC 45

SUPREME COURT OF NOVA SCOTIA Citation: R v. Saulnier, 2012 NSSC 45 Date: 20120130 Docket: CRH 364139 Registry: Halifax Between: Her Majesty The Queen Provincial Crown v. Douglas David Saulnier Accused LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: January 26, 2012, in Halifax, Nova Scotia Written Decision: January 30, 2012 Subject: 90 Day Bail Reviews required by s. 525 Criminal Code , and the associated procedure and evidentiary issues.

Summary: Mr. Saulnier was denied bail on May 17, 2011, on indictable offences - a robbery at the Mic Mac Hotel involving the use of bear spray while being masked. Pursuant to s. 525 , the custodian of the detained accused made late application to this court for a review of his detention. At the hearing, Mr. Saulnier presented further evidence/information relevant to s. 515(10) issues, and two sureties with a proposed release plan. Issue: Are all detained accuseds eligible for such reviews? What is the “ record ” to be properly considered by the reviewing court under s. 525 ?

What is the nature of the review hearing - is it a review de novo ? Who bears the onus of whether the continued detention of an accused is justified? Result: The continued detention of Mr. Saulnier was justified.

While arguably accuseds that consent to remand should not be afforded the benefit of a s. 525 review, it is more consistent with the constitutional framework and practical considerations that there be no distinction between accuseds who consent to remand and are detained, and those were detained after show cause hearings. “ The record ” should be produced by the Crown in all cases where the detained accused is unrepresented. Discussion of

what “ the record ” should include.

Section 525 of the Criminal Code hearings are de novo hearings. The burden of satisfying the court that the continued detention of the accused is not justified is upon the detained person in every case, regardless of whether the Crown or the accused had the burden at the original bail hearing [if there was one]. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R v. Saulnier, 2012 NSSC 45 Date: 20120130 Docket: CRH 364139 Registry: Halifax Between: Her Majesty The Queen Provincial Crown v.

Douglas David Saulnier Accused Judge: The Honourable Justice Peter P. Rosinski. Heard: January 26, 2012, in Halifax, Nova Scotia

Counsel: James Giacomantonio, for the Provincial Crown Wayne Bacchus, for the Accused By the Court : Introduction [ 1 ]

Section 525 of the Criminal Code requires that persons detained in pre-trial custody, charged with offences other than within s. 469 , who are not required to be detained in respect of any other matter, be brought before the court within 30 or 90 days (summary conviction / indictable proceedings) “ to fix a date for a hearing to determine whether or not the accused should be released from custody ” . [ 2 ] The

section is silent in relation to many important procedural issues.

For example: i - Must an accused have had a bail hearing [rather than consented to pretrial detention] before being eligible for a s. 525 review? ii - While the obligation to bring such accuseds before the court is on the “ person having custody of the accused ” , what is “ the record ” that the court should consider in its assessment of whether to continue the detention of such accused, and who should produce it for the court? iii - What is the nature of the review hearing - is it a review of only “ the record ” or does the review allow for new information/evidence to be presented to the court? iv - Who bears the onus as to whether the continued detention of the accused is justified?

Background [ 3 ] Mr. Saulnier was charged with offences allegedly committed February 13, 2011 - s. 344 , s. 351(2) , s. 245 (a), s. 267(8) , s. 88 , s. 91(2) and s. 117.01 of the Criminal Code of Canada . The Crown proceeded indictably on the hybrid offences such that all offences are before this court as indictable. On May 17, 2011, bail was denied by Provincial Court Judge Pamela Williams. His trial has been set for March 5 and 6, 2012 in Provincial Court. [ 4 ] The person having custody of Mr. Saulnier filed the s. 525 application for review on November 17, 2011. Mr.

Saulnier appeared in this court on November 24 with counsel and January 5, 2012 [at which time the court was advised that the transcript of the bail hearing would be completed on or about January 16, hence the matter is now before me]. [ 5 ] Although not argued before me, I observe that some courts have found an accused ’ s detention “ unlawful ” where the accused ’ s custodian does not apply to the court under s. 525 within a reasonable time after the expiration of the 30 or 90 day time periods - R v. Lalo 2002 NSSC 157 ; R v. Vukelich

(1993) CCC (3d) 225 (BCCA). The Law Regarding

Section 525 Criminal Code Reviews

i - Must an accused have had a bail hearing [rather than consented to pretrial detention] before being eligible for a s. 525 review? [6] Although not relevant in the case at Bar, this issue may arise in future, and I make the following observations, in spite of itnot having been argued before me. [7] The purpose of s. 525 reviews has been canvassed in the jurisprudence and is conveniently summarized in R v. Sarkozi 2010BCSC 1410 , 2010 BC SC 1410 [2010] BCJ No. 1970 [SC] by Justice Gaul at paras. 8 - 11.

In essence, the thrust of s. 525 is torequire the court to monitor the continued detention of the accuseds to ensure they are not needlessly detained, and to ensure that there isno unreasonable delay in proceeding to trial. [8] Although Justice Gaul at para. 32 stated that “I do not agree with the proposition that an accused has the right to a s. 525review in a situation where there has been no bail hearing in Provincial Court, and more particularly no detention order made”, I prefer toemphasize the comments of the Alberta Court of Appeal in Neill v.

Calgary Remand Centre (Director) 1990 ABCA 257 ,[1991] 2 WWR 352, [1990] AJ No. 690 [CA], on that issue wherein it stated: For the accused, it is said that the real purpose of s. 525 is to oblige a Queen's Bench judge, in the case of every accused detained formore than 90 days on an indictable matter, to review the steps taken to have a trial and to make directions to expedite it. It matters notthat the accused was denied release on a recent review; the thrust of the inquiry is into delay of trial not detention, and judicialinterim release is but one possible solution open to the judge if the trial is delayed...

I agree, for the reasons that follow, that the sections under review address not just the question of detention but also the ideal of a prompttrial, and impose a duty upon Queen's Bench to do everything it can to insure that trials be heard promptly, particularly when the accusedis in custody. [My emphasis] [9] To similar effect, the British Columbia Court of Appeal stated at para. 30 in Burton v.

British Columbia (Surrey Pre-TrialCentre Director) (BC CA), 28 BC AC 233, [1993] BCJ No. 892 [CA]: The weight of recent appellate authority, which I accept, indicates that upon the expiration of 90 days from the date of a person'sdetention, a review of detention must be held forthwith pursuant to the provisions of s. 525 of the Code, even though, during the 90 dayperiod, one or more reviews of detention have been held pursuant to the provisions of s. 520 of the Code.

The review under s. 525 isrequired to ensure that an accused person is not unnecessarily detained and that directions are given for expediting his or her trial. [10] While I appreciate Justice Gaul’s view that no reviews should be triggered by s. 525 unless a show cause hearing has been heldand the accused was consequently detained, I believe that there should not be a distinction drawn between accuseds who “consent toremand”, which saves resources as would a guilty plea prior to trial, and accuseds who unsuccessfully contest a show cause hearing.

Ineither case, the effect is the same - the accused is detained until further order of the court. There is no statutory basis for the so called“consent to remand” position taken by some accuseds, but it is an acknowledgment by them that it is in their interests to not contest theshow cause hearing and effectively admitting to the bail court that the preconditions to their detention would have been established had ashow cause hearing been held.

I only add that those that save judicial resources by not contesting their show cause hearing should not bepunished for doing so, by depriving them of the potential benefits of s. 525 hearings, especially where their liberty and constitutionalright to a trial within “a reasonable time” is implicated. [11] Therefore, in my view, every accused who meets the bare requirements of the s. 525 review process, must be brought beforethe court and his/her continued detention reviewed. ii - What is the record that the court should consider in its assessment of whether to continue the detention of the accused, and whoshould produce it for the court? [12] In R v.

Cardinal (1999) 1999 ABQB 205 , 241 AR 97, [1999] AJ No. 232 [QB], Justice Veit noted that:

[In contrast to bail review applications brought by an accused] However, different information is required on s. 525 hearings. In particular, the State, on whom Parliament has imposed an obligation to provide trials within a reasonable time, is entitled to notice that an accused person who is detained in prison before being tried is being presented to the court for s. 525 consideration. ...

Section 525 hearings are not Askov hearings. However, the issues the court must grapple with on a s. 525 hearing are very similar to those the court must deal with on an Askov hearing. ... [Ultimately] At that stage the court must weigh the community's right to safety against the accused's right to a speedy trial.

Notice to the prosecution that a s. 525 hearing will address these conflicting values provides procedural fairness to the state by giving it the time it requires to gather information about such potentially relevant matters as: - whether the current trial date is the first available trial date, or whether it is the first date on which the accused's lawyer was available to have a trial, etc.; - the degree of complexity of the particular trial; - any particular problems of obtaining evidence for this trial; - whether the accused is responsible for any of the delays in getting to trial; - whether the accused suffers from any prejudice as a result of a long delay in getting to trial; - statistics from this jurisdiction about the average delay to get to trial for this type of proceeding and, if the proposed trial differs from the average, any explanation about the difference.

In the result, therefore, it would be unfair - in a bail review application - to ask the prosecution to deal with a s. 525 argument unless it has previously received notice that this is an issue that will be dealt with at the hearing. - Paras. 38 - 44. [ 13 ] What this excerpt points out is that the Crown cannot be expected to be in a position to proceed if the accused, whether through his counsel or otherwise, does not give the Crown notice of what issues it suggests arise in the review, and what evidence will be offered in support of the accused ’ s position. [ 14 ] On a practical level this should not become an issue.

If an accused is unrepresented, then their anticipated position at the review hearing should be raised when they appear at Crownside Chambers to set a date for the hearing. Generally fairness dictates that in such cases, the Crown should provide to the court the appropriate materials to comprise “ the record ” , much as would be done in appeal situations where an offender has been sentenced to custody and at the time of filing the notice of appeal is unrepresented by counsel so that the obligation of preparing an appeal book is upon the Crown - see Civil Procedure Rule 91.15(5).

If an accused has counsel, then they should provide “ the record ” to the court.

[ 15 ] What should constitute “ the record ” will vary according to the circumstances of each case, however at a minimum, one would expect a certified copy of the information in Provincial Court, a transcript of bail hearings and any bail review hearings conducted, and a copy of the offender ’ s criminal record should be provided to the court.

Where no show cause hearing was held, and the accused has consented to the detention pending trial, “ the record ” will require modification, but bearing in mind that the reviewing court must consider s. 515(10) and any delay, the accused (who made the decision to “ consent to remand ” and is in the best position to articulate the basis for that decision) is well advised to properly present to the court the circumstances in existence regarding those factors at the time of the consent, and relevant transcripts, etc.

Information relevant to the delay to date, and anticipated delay to trial and reasons therefore, would also be expected by the court, in all cases. [ 16 ] I recognize that some will take the view that having consented to remand, an accused maintains his/her right to an initial s. 515 show cause hearing. I am expressing no opinion on that issue, as I merely assume herein that by consent to remand, which requires an order detaining the accused to be authorized by the court, that that right to an initial bail hearing has been waived, which cannot be revisited.

Arguably on that assumption, the accused could rely on s. 520 for a review thereof. iii - What is the nature of the review hearing - is it a review of only “ the record ” or does the review allow for new information/evidence to be presented to the court? [ 17 ] Justice Gaul in Sarkozi discusses the process and procedure under s. 525 at paras. 12 - 17. [ 18 ] Section 525(4) reads:

(4) If, following the hearing described in subsection (1), the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10), the judge shall order that the accused be released from custody pending the trial of the charge on his giving an undertaking or entering into a recognizance described in any of paragraphs 512(2)(

a) to (

e) with such conditions described in subsection 515(4) as the judge considers desirable. [ 19 ] Section 524(3) reads:

(3) On the hearing described in subsection (1), the judge may, in deciding whether or not the accused should be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge. [ 20 ] Justice Gaul stated at para. 17 in Sarkozi : ...in my opinion, the approach to a s. 525 review outlined above by Veale J. in Sawrenko is the preferable one.

Where an accused is in custody as a result of a detention order and the statutorily prescribed period of time has elapsed without a trial, s. 525 mandates that the issue of the accused's continued detention be reconsidered. In conducting the review, s. 525(4) makes it clear that the factors contained in s. 515(10) need to be considered and assessed to determine whether the continued detention of the accused is justified.

The issue of any unreasonable delay in getting the matter to trial and who is responsible for such delay is an additional factor that may, pursuant to s. 525(3), be considered by the reviewing court in its assessment of whether the detention in custody remains justified. [ 21 ] In contrast, in R v. Kissoon [2006] O.J.

No. 4800 [SC] , Justice Hill held that a s. 525 hearing should proceed in two distinct steps: first a determination is made regarding whether there has been any unreasonable delay in proceeding to trial; secondly, if so, and only then, should the court consider whether the accused detention is still justified under s. 515(10). [ 22 ] In my view, s. 525 is designed to ensure that accused persons are not detained needlessly, and that there is no unreasonable

[ 22 ] In my view, s. 525 is designed to ensure that accused persons are not detained needlessly, and that there is no unreasonable delay in matters proceeding to trial. My difficulty with Justice Hill ’ s approach in Kissoon , is that these two purposes are not easily separated into neat compartments, and thus a structured analysis such as he proposes may inadvertently work an injustice.

Moreover, a reading of s. 525(4) suggests that a judge should consider whether the continued detention “ is justified within the meaning of subsection 515(10) ” , and if not so satisfied “ shall order that the accused be released from custody pending the trial... ” . It is only in s. 524(3) that delay is referred to as a factor. [ 23 ] Thus, while both purposes are relevant, the predominant enquiry is whether the continued detention is justified. This conclusion also tends to be confirmed by a reading of s. 525(9) which allows the court to “ give directions for expediting the trial of the accused ” .

While this authority to give directions may be considered to relate to both accused who are released, and those who remain detained in custody, given the statutory context, I am of the view that s. 525(9) is particularly directed at cases involving accuseds who remain detained pending trial. [ 24 ] At

section 525 hearings, information and evidence relevant to the factors in s. 515(10) and the circumstances of any delay in the matter proceeding to trial should collectively be considered by the court. Thus I am inclined to agree with Justice Gaul in Sarkozi in this respect, preferring his approach over that of Justice Hill in Kissoon . [ 25 ] Mr. Saulnier has cited R v.

Baggs , 2008 NLTD 53 , [2008] 842 APR 173 , per Justice Woodridge at paras. 2 and 3 to support his position that: “ the defence submits that this would be a hearing de novo and the Crown would have to show cause why the defendant ’ s continued detention is necessary in addition to the aforementioned explanation ” . [ 26 ] While new evidence regarding the s. 515(10) factors, available since the detention of an accused, could conceivably be produced at a s. 525 hearing, in my view that should be the exception, since there are other sections of the Criminal Code triggered by an application by the accused, or the Crown, at the time of their choosing, that would cause the accused ’ s bail/detention to be reviewed specifically on the basis of whether there has been a material change in circumstances. [ 27 ] Nevertheless, to be clear, I conclude that s. 525 hearings are de novo hearings, and not just a review of previous detention orders (or the relevant circumstances existing at the time an accused consents to remand). iv - Who bears the onus as to whether the continued detention of the accused is “ justified ” ? [ 28 ] While I accept that this is a hearing de novo , insofar as any material change in circumstances and any delay since Mr.

Saulnier ’ s detention are relevant, that conclusion does not necessarily suggest that the Crown has the burden to justify the continued detention of the accused as argued by the defence here, relying on Justice Woodridge ’ s analysis in Baggs . Firstly, I note that Justice Woodridge ’ s comments in para. 2 about the onus being on the Crown must be read in context.

He continued on to state: Typically this burden would be addressed by the Crown explaining why the matter has not proceeded to trial within the 90 day time frame, and advising of the anticipated trial date. [ 29 ] Moreover, while Justice Gaul in Sarkozi at paras. 18 - 24 , ultimately concluded that: “ I find it only makes sense that [the onus] it remain on the party upon whom it rested at the original bail hearing.

To do otherwise would permit an accused who has been ordered detained in custody in a "reverse onus" situation to rid him or herself of the persuasive burden imposed by s. 515(6) strictly on the basis of the passage of time and nothing else. ” ; absent legislation or jurisprudence dictating otherwise, in my opinion the burden is upon the party who is seeking the change, and in these cases that person is the detained accused, who must satisfy the court that the continued detention of the accused in custody is not justified. Application of the law to the facts in this case

[ 30 ] At this s. 525 hearing, I permitted Mr.

Saulnier and the Crown to add undisputed factual representations, much as would have been done at an original bail hearing, to ensure that I did not have misconceptions about, for example the evidence in support of the Crown ’ s case at trial to date of this hearing, or the position of the Defence regarding that factor; or any of the other s. 515(10) factors. [ 31 ] I also made his criminal record, Exhibit #1 (CPIC) and Exhibit #2 (JEIN - Provincial Justice database) in this hearing, as had been done at the show cause hearing. [ 32 ] In his brief filed January 25, 2012, Mr.

Saulnier argues that there has been a material change in circumstances, along with “ errors ” in the original bail hearing (i.e. counsel representations made which require further contextual elaboration) which should cause this court to find the continued detention of Mr. Saulnier to be not justified. He argues: i - At the original bail hearing, Judge Williams was not aware that an alibi witness existed, (Ms. Emily Fancy), “ who has now provided a KGB statement to the Crown ” which if believed, would put Mr.

Saulnier several miles away from the crime scene in a snowstorm at the time of the robbery; ii - at the original bail hearing, the Crown invited the Court to visually inspect whether Mr. Saulnier who was present had tattoos on his face and that this was in violation of s. 518(1)(

b) that the “ accused shall not be examined by the Justice or any other person... ” ; iii - the Crown did not include several relevant matters in its presentation of information to Judge Williams at the bail hearing including: (

a) While the Crown did tell Judge Williams that “ what the desk clerk did notice... Because the accused didn ’ t cover the... all of his face. There ’ s tattoos up on his face with the bandana. So he did notice that... Besides we also have... We also have him saying that he had tattoos on his face, which, as you can see he surely does. ” - p. 36 transcript; in contrast the Defence argues that the victim in his statement specifically said: “ the guy had tattoos on his face. Visible around his forehead. ” ; (

b) that Judge Williams was not told that the main witnesses against Mr. Saulnier, his two co-accuseds, were originally being questioned by police as victims of a firebombing in which their car was destroyed and they believed that Mr. Saulnier was responsible, yet shortly afterwards, both gave statements naming him as forcing them into doing the robbery in the case at Bar; (

c) that Judge Williams was not told that the Crown disclosure indicated that three of the initial investigating officers “ after viewing the video feel that the suspect with the tattoos on his face could be Scott Blair... ” ; (

d) that Judge Williams was not told that Mr. Saulnier, when interviewed, denied all involvement in the robbery and indicated to police that he had been framed. [ 33 ] In relation to each of these items, let me say the following, given that the context is a bail hearing, which in Provincial Court is necessarily a

summary and somewhat informal process:

a) While the Defence complains that the judge at the bail hearing was asked by the Crown to view whether Mr. Saulnier has tattoos in the face area, the Defence here has asked me to note “ the fact my client has no tattoos on his forehead ” . I see no difficulty with the bail hearing judge having viewed the physical characteristics of the accused. Moreover, to the extent that there was no objection taken at the bail hearing by the Defence to the commentary of the Crown, or its invitation to the Court to view Mr. Saulnier ’ s facial area, I take it that these items were not considered to be sufficiently objectionable by the Defence to be raised at that time;

b) whatever evidence or information the Defence wished to be presented as “ credible or trustworthy ” at the bail hearing was within its control, and it, not having presented the evidence of the co-accuseds specific motivation, must have been satisfied that it was not necessary to do so;

c) similarly, the Defence had the opportunity to contradict the identification evidence, by drawing attention to the possibility of an alternative suspect, Scott Blair;

d) although generally statements of an accused may only be introduced by the Crown at trial, at a bail hearing, even if more flexibility might be afforded to an accused in proper cases to allow the introduction of his/her exculpatory statement, however in this case, no such attempt was made by the Defence. [ 34 ] Nevertheless, at this hearing I believe I can consider these matters, even though it is a de novo hearing generally intended to involve only material changes in circumstances occurring since the show cause hearing/detention, to the extent that such matters are intended to avoid this court being left with significant misconceptions based on only the record from the original bail hearing.

Strictly speaking, a party wishing to put such “ clarifications ” before the s. 525 court should request the permission, or leave, of the court before doing so. [ 35 ] On the other hand, relevant and significant matters arising since the show cause hearing/detention do not require leave. [ 36 ] In this case, I permitted these matters of “ clarification ” to be presented by counsel as it was in the interests of justice to do so. [ 37 ] Regarding the KGB statement from Emily Fancy, I have virtually no reliable basis for assessing that as a factor in this hearing.

I am advised that she did not reveal this alibi to the Crown and others until August 2011. I am aware that she testified on behalf of Mr. Saulnier at the bail hearing, and although Mr. Saulnier had counsel, his counsel did not ask her about such alibi evidence, having had the opportunity to do so. I infer that either his counsel was unaware of this alibi at that time, or not convinced that it would be appropriate or in his client ’ s interest to present such evidence to the court at the bail hearing. Ms. Fancy, according to the evidence, is the 18 year old live-in girlfriend of Mr.

Saulnier, who had dated him since February 2011. It is surprising that between his arrest on May 12 and the bail hearing on May 17, Mr. Saulnier ’ s counsel would not of been made aware of this highly important evidence that the Defence now proposes is a material change of circumstances since his detention. I acknowledge the Crown ’ s observation that even if the alibi were believed, the time and distance involved still might have allowed Mr. Saulnier to commit these offences. I do not give that alibi evidence much weight, in this hearing. [ 38 ] Mr.

Saulnier had argued in his written pre-hearing brief that he has an improved release plan which would see his sister Janet Borden (neé Saulnier) be a surety in the amount of $5000 (no cash payment, but justified), with conditions that include his house arrest and that he live with her and her husband, Michael Borden. [ 39 ] At the hearing, Mr. Saulnier ’ s position changed - he argued that a second surety, Laura Lee Patricia Foster (aka Grant) would be available as well to put $3000 of her assets at risk (no cash deposit but justified). [ 40 ] Both Ms. Borden and Ms. Foster testified and were cross examined. Ms.

Borden is a stay at home kind of person, and is renting an apartment with her husband, Michael Borden, who has a criminal record, although its recency and the details thereof are unclear. She is the sister of the accused, and claimed she could control his behaviour, if he were released to her custody on house arrest, or even if he was released to Ms. Foster ’ s custody on house arrest, as they live only 20 minutes apart. [ 41 ] On cross-examination, she conceded she did not really know Ms.

Foster, a half-sister to the accused (they have the same biological father), whom she had “ seen around ” from time to time. [ 42 ] In direct examination, she had claimed to have successfully been a surety for Mr. Saulnier “ a few years ago ” . In cross- examination she conceded it was likely in 1998, and that she was not aware that Mr. Saulnier had failed to appear for court and a warrant had to be issued for his arrest at that time.

[ 43 ] She is on social assistance, and pledged assets valued at $5000, being her living room, bedroom furniture and computer. Her husband is employed. [ 44 ] Sherry Saulnier, the proposed second surety who testified with Emily Fancy at the original bail hearing, is her cousin. [ 45 ] Ms. Foster testified that she was born in Halifax, November 18, 1975 and shares an apartment with her 12 year old daughter in Woodside. She has only recently had any significant contact with Mr.

Saulnier (in the last 10 months), although she had moved back to Nova Scotia about 10 years ago. [ 46 ] She has no adult criminal record, but is in the midst of completing an Adult Diversion at present. She does not know the details of Mr. Saulnier ’ s criminal record, and preferred in her contact with him, to focus on making his future better, rather than dwelling on the past. [ 47 ] She has previously been a surety for her half sister, Leanne Grant and “ a friend ” , and is therefore aware of those responsibilities and the risk of losing the $3000 of assets she would justify as a surety for Mr.

Saulnier. [ 48 ] I understand that she is not presently working, but may be seeking work. [ 49 ] In my consideration of s. 515(10), I conclude that both s. 515(10)(

b) and (

c) are applicable here in particular. In that light, I have concluded that both proposed sureties are not demonstrably well situated or suited to control Mr. Saulnier ’ s behaviour or report bail violations to the authorities. [ 50 ] I say this based on their examinations in court and because Mr. Saulnier is, in the words of the Crown “ a very serious offender who has committed a very serious offence ” ; and there is no recent evidence regarding Mr. Saulnier ’ s rehabilitation.

I note that he served his 7.5 year sentence from 2002 - 2003 until February 23, 2010, just 3 months short of his warrant expiry date of May 10, 2010. That suggests that his rehabilitation did not go particularly well. However, I also recognize that he has had no other charges between May 10, 2010 and these, alleged on February 13, 2011. [ 51 ] Mr. Saulnier did not testify to support his counsel ’ s assertion that he would be respectful of all his proposed bail conditions, nor to elaborate on what his personal goals would be while on release, whether that be employment, assisting Ms. Foster or Ms.

Borden with household chores, or some other productive activity.

He did not explain and stand to be cross-examined on why his sister and half sister would be able to control his behaviour at this point in time. [ 52 ] He has no obligation to testify at the hearing, but since he could not be asked about the offences (s. 518), he had an opportunity to personally communicate his sincerity and belief that his proposed release plan was a reliable one that would give the court confidence in releasing him. [ 53 ] I conclude that his proposed release plan is not sufficient to give me the confidence to conclude that he has satisfied the concerns reflected in s. 515(10) which originally were the basis for his detention. [ 54 ] Moreover, I am also aware that Mr.

Saulnier ’ s trial date has been set for March 5 and 6, 2012. Conclusion

[ 55 ] On a review of the factors in s. 515(10), I see no justification to change the conclusion of the bail hearing judge, that Mr. Saulnier should be detained. [ 56 ] I also note that the delay from now until trial is a mere six weeks. [ 57 ] For all of those reasons, I declined to release Mr. Saulnier pending his trial, and I see no need to give directions to expedite the trial. J.